STAND UP FOR CALIFORNIA!, PATTY JOHNSON, JOE TEIXEIRA, and LYNN WHEAT, Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERIOR; RYAN ZINKE, in his official capacity as Secretary of the Interior; BUREAU OF INDIAN AFFAIRS; and JOHN TAHSUDA III, in his official capacity as Acting Assistant Secretary-Indian Affairs, Defendants, and WILTON RANCHERIA, CALIFORNIA Intervenor-Defendant.
Case No. 1:17-cv-00058 (TNM)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
February 28, 2018
TREVOR N. MCFADDEN
This case involves a uniquely Washingtonian question: when can a federal employee act in the place of an absent agency or unit head? This issue becomes acute during presidential transitions, when thousands of senior political appointees exit the government, often leaving their positions vacant for months or even years. Congress addressed this question through the Federal Vacancies Reform Act (“FVRA”),
Here, Stand Up for California!, Patty Johnson, Joe Teixeira, and Lynn Wheat (collectively, “Plaintiffs”) challenge the decision of the United States Department of the Interior, its Secretary of the Interior and Acting Assistant Secretary-Indian Affairs in their official capacities, and the Bureau of Indian Affairs (collectively, “Federal Defendants” or the “Department”) to acquire land in trust for the Wilton Rancheria Tribe of California (“Wilton Rancheria” or the “Tribe”). The Plaintiffs allege that in delegating to the Principal Deputy Assistant Secretary-Indian Affairs and the Special Assistant to the Director of the BIA the authority to act in the place of the Assistant Secretary-Indian Affairs, the Department violated its own regulations and the FVRA. This Court granted the Wilton Rancheria’s motion to intervene. Minute Order, Feb. 24, 2017. Now pending before the Court are the Plaintiffs’ motion for summary judgment and the Department’s and Wilton Rancheria’s (collectively, the “Defendants”) cross-motions for summary judgment. As jurisdiction and venue is proper in this Court,1 and upon consideration of the pleadings, relevant law, related legal memoranda in opposition and in support, the parties’ representations at oral argument, and the entire record, I find that no genuine issue of material fact exists and that the actions taken by Department employees in lieu of the Assistant Secretary-Indian Affairs (a vacant office at the time) were not in violation of departmental regulations or the FVRA. Accordingly, the Plaintiffs’ motion for summary judgment will be denied, and the Defendants’ cross-motions for summary judgment will be granted.
The Wilton Rancheria has been landless for nearly 60 years. Mem. of P. & A. in Opp. to Pls.’ Mot. for Summary J. and in Supp. of Wilton Rancheria, California’s Cross-Mot. for Summary J. (“Tribe’s Cross-Mot. for Summary J.”) 5, ECF No. 41. In 2013, the Tribe applied for the Bureau of Indian Affairs (“BIA”) to acquire land in trust on its behalf, identifying a 282-acre parcel near Galt, California as the proposed site. See Am. Compl. ¶ 31. After three years of examination of the Galt site, the BIA published a notice of the final environmental impact statement shortly after the November 2016 presidential election, but for a different, 36-acre parcel of land in Elk Grove, California. See id. ¶ 38. As the Plaintiffs understood for the significant majority of the years-long process that the land to be acquired was in Galt, not Elk Grove, the Plaintiffs immediately sought to delay the acquisition of title to the Elk Grove land by making several requests to the Secretary of the Interior (“Secretary”). Id. ¶¶ 38, 40. When the Plaintiffs’ requests were refused, they filed suit in this District, seeking a temporary restraining order and preliminary injunction against the Department to prevent acquisition of title to the land. Id. ¶ 41. Another judge of this District denied the motions, after which the Plaintiffs formally applied to the Department for a stay under
Rather than halting the process, the Department shifted into warp speed—for a federal bureaucracy—to approve the application for the Elk Grove site. On January 19, 2017, in the waning hours of the Obama Administration, Lawrence Roberts, the Principal Deputy Assistant Secretary-Indian Affairs, issued a Record of Decision approving the Wilton Rancheria’s application and authorizing acquisition of the Elk Grove land in trust for the Tribe. See Mot. to
On March 7, 2017, citing administrative appeals regulations, Mr. Black exercised jurisdiction over the appeal as the Acting AS-IA. Pls.’ Mem. for Summary J. Ex. A, ECF No. 33-1. On July 13, 2017, Mr. Black, signing as the Acting AS-IA, dismissed the appeal, determining that the January 19, 2017 Record of Decision was a proper and final agency action. See id. Ex. F, ECF No. 33-1. Mr. Black reasoned that the FVRA permitted the delegation of the non-exclusive functions and duties of the AS-IA; and that Mr. Roberts, as the Principal Deputy Assistant Secretary, was duly delegated at the time, under the Department Manual, the non-exclusive functions and duties of the AS-IA, including approving the Tribe’s application. See id.
The parties then returned to this Court and the Plaintiffs filed an amended complaint. Count One challenges Mr. Roberts’ January 19, 2017 Record of Decision approving the Tribe’s application as an ultra vires action in violation of agency regulations and the FVRA. Am. Compl. ¶ 70. Count Two challenges Mr. Black’s decisions to acquire title in trust for the Tribe (February 10, 2017), assume jurisdiction over the Plaintiffs’ appeal (March 7, 2017), and issue an order dismissing the appeal (July 13, 2017) as violations of agency regulations and the FVRA.
II. LEGAL STANDARD
To prevail on summary judgment, the movant must show an absence of a genuine issue of material fact and that the movant is entitled to judgment as a matter of law.
III. ANALYSIS
A. Statutory and Regulatory Scheme
As this matter involves the interplay between Congress’ statutory scheme setting forth who is authorized to act for the United States under what circumstances and the Department’s regulatory scheme implementing Congress’ directives, I begin my analysis with an overview of the applicable statutes and regulations.
In 2013, Section 151.12 was revised to, among other things:
Provide clarification and transparency to the process for issuing decisions by the Department, whether the decision is made by the Secretary, Assistant Secretary-Indian Affairs (AS-IA), or a Bureau of Indian Affairs (BIA) official;
Ensure notice of a BIA official decision to acquire land into trust, and the right, if any, to file an administrative appeal of such decision by requiring written notice to all interested parties who have made themselves known in writing to the BIA official . . . .
78 Fed. Reg. at 67,929. The revised rule added new subsections (c) and (d), which were summarily described as housing certain requirements moved from subsections (a) and (b), such as prompt notification, notification of appeal rights, title examination, exhaustion of administrative remedies, and publication in the Federal Register. Id. at 67,930-67,931. The revisions also clarified the “different means and timelines for challenging decisions depending on whether the decision is issued by the AS-IA or a BIA official.” Id. at 67,929. Accordingly, Section 151.12(c)—which is at the crux of the current dispute—provides the applicable
A decision made by the Secretary, or the Assistant Secretary-Indian Affairs pursuant to delegated authority, is a final agency action under 5 U.S.C. 704 upon issuance.
(1) If the Secretary or Assistant Secretary denies the request, the Assistant Secretary shall promptly provide the applicant with the decision.
(2) If the Secretary or Assistant Secretary approves the request, the Assistant Secretary shall:
(i) Promptly provide the applicant with the decision;
(ii) Promptly publish in the Federal Register a notice of the decision to acquire land in trust under this part; and
(iii) Immediately acquire the land in trust under § 151.14 on or after the date such decision is issued and upon fulfillment of the requirements of § 151.13 and any other Departmental requirements.
Therefore, a decision properly made under Section 151.12(c) is a final agency action and the AS-IA may acquire the land in trust. Under Section 151.12(d):
A decision made by a Bureau of Indian Affairs official pursuant to delegated authority is not a final agency action of the Department under 5 U.S.C. 704 until administrative remedies are exhausted under part 2 of this chapter or until the time for filing a notice of appeal has expired and no administrative appeal has been filed.
(emphases added). The addition of subsections (c) and (d) thus “makes explicit the requirement that prior to seeking judicial review of a BIA official’s decision, a party must first exhaust the administrative remedies available under 25 C.F.R. part 2.” 78 Fed. Reg. at 67,929.
Separate from, but in addition to its promulgated regulations, the Department has established an internal Department Manual setting forth its operational procedures.4 The Department Manual includes a series on the Secretary’s delegation of authority pursuant to
Last, the FVRA is Congress’ practical response to the “problems that arise when our Constitution confronts the realities of practical governance,” such as when the change in presidential administrations leaves vacant certain positions requiring appointment by the President and confirmation by the Senate (known as “PAS” positions). See SW Gen., Inc. v. N.L.R.B., 796 F.3d 67, 69 (D.C. Cir. 2015);
B. Count One: The Record of Decision Was Not Ultra Vires Action
The Plaintiffs first challenge the January 19, 2017 Record of Decision signed by Mr. Roberts, the Principal Deputy Assistant Secretary-Indian Affairs. The former AS-IA, Kevin Washburn, resigned from office effective midnight on December 31, 2015. Pls.’ Mem. for Summary J. Ex. F. Pursuant to the FVRA and the Department Manual, Mr. Roberts, as the Principal Deputy Assistant Secretary and “first assistant” to the AS-IA, automatically became the Acting AS-IA. See id;
In short, the Plaintiffs argue that the Department’s regulations permit only the Secretary and the AS-IA, both PAS positions, to make final trust decisions. See
The Defendants counter that
The threshold question is whether
First,
This presumption is applicable and not overcome by any “affirmative evidence” in this case. See U.S. Telecomm, 359 F.3d at 565. The plain text of the regulation does not reveal any affirmative language precluding delegation, such as “may only be delegated to,” “may not [be] delegate[d],” “may not be reledegated,” “shall not be redelegated,” or is “not subject to
Second, the context and comments relating to the regulation about which the Plaintiffs complain do not suggest it is a delegation regulation. While an agency is “bound by its own regulations,” Texas v. EPA, 726 F.3d 180, 200 (D.C. Cir. 2013) (internal quotations and citations omitted), the regulation at issue here is not about the Secretary’s ability to delegate, nor does it set forth the Secretary’s delegation structure. See
This finding is supported by the Secretary’s comments—or rather, the lack thereof—in the preamble to the final rulemaking.10 None of the comments explicitly or implicitly address delegation. The portion of the preamble “detail[ing] all revisions this new rule would make to § 151.12” lacks any indication that delegation is an intended subject of the changes. See id. at 67,930-67,932. The revisions instead focus on when judicial review may occur by deleting a 30-day waiting period prior to seeking judicial review, providing notice of a BIA official’s decision such that “[t]he time for unknown interested parties to file a notice of appeal begins to run upon the date of first publication of such newspaper notice,” and clarifying that administrative review
Moreover, reading Section 151.12(c)’s references to the “AS-IA” narrowly (i.e., to mean the AS-IA and no one else) would lead to absurd results. See Holy Trinity Church v. United States, 143 U.S. 457, 460 (1892) (“If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity.”). According to the regulation, if the Secretary or the AS-IA approves the fee-to-trust application, the AS-IA “shall
(i) Promptly provide the applicant with the decision;
(ii) Promptly publish in the Federal Register a notice of the decision to acquire land in trust under this part; and
(iii) Immediately acquire the land in trust under § 151.14 on or after the date such decision is issued and upon fulfillment of the requirements of § 151.13 and any other Departmental requirements.”
Third, while there do not appear to be any cases directly addressing the issue of whether the authority to issue final fee-to-trust decisions is exclusive, delegation case law more broadly is consistent with the AS-IA’s authority being delegable in this instance. The Plaintiffs primarily rely on Giordano v. United States, in which the Supreme Court held that a provision providing that “(t)he Attorney General, or any Assistant Attorney General specially designated by the Attorney General” may authorize a wiretap application reserved the authority solely to those two individuals and did not permit further delegation. 416 U.S. 505, 513-14 (1974); Tr. of Mot. Hr’g 7. Significantly, the Plaintiffs assert, the statute was devoid of language explicitly preventing delegation, such as the terms “only” or “exclusively,” which are also lacking in
In Giordano, the Supreme Court examined the purpose of the legislation, which was to generally prohibit wire intercepts, and found that “Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint.” 416 U.S. at 514-15. There, delegation appeared “wholly at odds with the scheme and history of the Act.” Id. at 523. Here, the Secretary’s 2013 rulemaking expressed no similar intent. To start, the statute in Giordano generally served to restrict an action, whereas Section 151.12 and its subsection (c) do not share the same overall goal to restrict. Rather than a prohibitive regulation, Section 151.12 is procedural in nature, describing how fee-to-trust application requests are actioned and setting forth the effects of those actions. Further, the Supreme Court in Giordano extensively analyzed
The Second Circuit in United States v. Mango similarly distinguished Giordano based on these characteristics. 199 F.3d 85, 90-91 (2d Cir. 1999). In Mango, the Second Circuit found that the Clean Water Act’s provision granting authority to issue certain permits to the “Secretary,” defined as “the Secretary of the Army, acting through the Chief of Engineers,” did not preclude delegation to others. Id. at 86-87. The Second Circuit found that even though the language at issue from the Clean Water Act “contains language somewhat similar to the wiretap statute,” the absence of legislative history indicating that Congress considered and rejected subdelegation distinguished it from Giordano. Id. at 90-91. As with Section 151.12, the relevant provision of the Clean Water Act was not a specific delegation provision, and the scheme as a whole was not intended to forbid a certain action. Mango’s holding and reasoning is more akin to the circumstances presented by Section 151.12(c) than Giordano.
The Federal Circuit in Ethicon Endo-Surgery also analyzed whether there was clear congressional intent to prohibit subdelegation in the context of the America Invents Act. The statute provided that “[t]he Director shall . . . appoint such officers . . . as the Director considers
The Defendants’ reading also finds support among the few district court cases that have faced analogous issues. In Schaghticoke Tribal Nation v. Kempthorne, both the AS-IA and Principal Assistant Deputy Secretary positions became vacant, and thus, there was no “first assistant” to become Acting AS-IA. 587 F. Supp. 2d 389, 420 (D. Conn. 2008). The Secretary delegated the non-exclusive duties of the AS-IA to an Associate Deputy Secretary. Id. The court examined the applicable statutes and regulations—in that case, pertaining to tribal acknowledgements—and found that the relevant statutes did not assign the function “exclusively” or “only” to the AS-IA, and that the relevant regulations similarly did not seem to preclude delegation of the AS-IA’s duties. Id. at 420-21. In Sokaogon Chippewa Community v. Babbitt, the court analyzed the scenario where the AS-IA was recused and delegated his authority to make a final fee-to-trust decision to the Deputy Assistant Secretary-Indian Affairs.
* * *
The Plaintiffs’ counterarguments are unavailing as they all misunderstand or misread
The Plaintiffs claim that the regulation’s text is clear that the only three roles that may make fee-to-trust decisions are the Secretary, “the [AS-IA] pursuant to delegated authority,” or a “[BIA] official pursuant to delegated authority” and that “magic words” are not necessary to evidence the Secretary’s intent to preclude delegation. See
To the extent the Plaintiffs turn to the preamble for support, the more informative cross-reference supports the Defendants’ reading. In providing background to the rulemaking, the Secretary explained, “[i]f the AS-IA issues the decision under this part, the decision is a ‘final agency determination,’ and the decision is final for the Department. See
The Plaintiffs also urge application of the legal maxim expressio unius est exclusio alterius and the canon against superfluity. The Plaintiffs highlight the fact that the former version of Section 151.12 only referred to the Secretary, whereas the 2013 revisions introduced the “[AS-IA] pursuant to delegated authority” as an authorized final fee-to-trust decision-maker. Pls.’ Mem. for Summary J. 8. According to the Plaintiffs, the Secretary’s addition of this phrase necessarily means that: (i) all other roles—including the Principal Deputy Assistant Secretary—are excluded (expressio unius), see Pls.’ Reply 5-6; and that (ii) the Defendants’ reading renders the phrase “the [AS-IA] pursuant to delegated authority” superfluous because the Secretary is already defined as the “Secretary of the Interior or authorized representative.” Id. at 7-8.
Even assuming that the canons of expressio unius and against superfluity apply with the same force in interpreting regulations as they do with statutes,12 neither provides affirmative evidence that the Secretary intended the fee-to-trust decision-making authority to be exclusive.
Understanding the “[AS-IA] pursuant to delegated authority” as someone who is properly carrying out the AS-IA’s delegated authority further comports with the background and purpose of the 2013 amendments, and particularly the acknowledgement that the “vast majority of trust acquisition decisions are delegated to and issued by BIA officials.” Id. at 67,929. Because decisions by the Assistant Secretary’s office typically go through several layers of review before issuance, id., it is consistent to establish a scheme that, in one subsection, addresses decisions that are final; and in another subsection, sets apart the procedures following a decision at the BIA-level, a subordinate agency under the AS-IA’s office, and clarifies that those decisions are not final and must be administratively appealed. See
2. The Authority to Make Final Fee-to-Trust Decisions Was Properly Delegated to Mr. Roberts
Having established that the authority to make final fee-to-trust decisions is non-exclusive, I next must determine whether the authority was properly delegated to Mr. Roberts. I conclude that it was.
The Department Manual Part 209, Chapter 8 concerns the office of the AS-IA, including delegation to the AS-IA. As the Plaintiffs themselves recognize, in Section 8.1, the AS-IA is delegated the authority to “exercise all of the authority of the Secretary,” with one limitation not relevant here. Department Manual 209 DM 8 § 8.1; Pls.’ Mem. for Summary J. 16. Chapter 8
On January 19, 2017, Mr. Roberts’ term as the Acting Secretary pursuant to the FVRA had expired, and he was the Principal Deputy Assistant Secretary. The AS-IA position remained vacant, with no acting or confirmed officer in the role. Thus, Mr. Roberts, as the Principal Deputy Assistant Secretary, was authorized to exercise the AS-IA’s non-exclusive authority, including the authority to make final fee-to-trust decisions. The Plaintiffs’ arguments to the contrary are mistaken. The Plaintiffs primarily challenge the Department Manual as incapable of “displac[ing] the contrary provisions of Section 151.12(c),” which the Plaintiffs proffered as mandating final fee-to-trust decisions only to the Secretary or AS-IA. Pls.’ Mem. for Summary J. 17. As I previously addressed that argument, and have now explained that Mr. Roberts’ authority properly flowed pursuant to the Department Manual, it is clear that the January 19, 2017 Record of Decision was final.14
Mr. Roberts’ action did not violate the FVRA. Under the FVRA, the “first assistant” to a vacant PAS position automatically assumes the “functions and duties” of that office for up to 210 days.
Accordingly, Mr. Roberts was empowered, as the Acting AS-IA, to exercise the AS-IA’s exclusive and non-exclusive duties between January 1, 2016 and July 29, 2016. See Pls.’ Mem. for Summary J. 8. After that period, and on January 19, 2017, Mr. Roberts was empowered, as the Principal Deputy Assistant Secretary, to perform the AS-IA’s non-exclusive duties, such as the authority to issue final fee-to-trust decisions. This was, as explained in Part III.B.2, pursuant to appropriately delegated authority, and does not violate the FVRA.15
C. Count Two: Mr. Black’s Actions Were Not Ultra Vires
Plaintiffs’ secondary challenge is to Mr. Black’s decisions to acquire title in trust for the Tribe (February 10, 2017), assume jurisdiction over the Plaintiffs’ internal administrative appeal (March 7, 2017), and dismiss the appeal (July 13, 2017) as violations of agency regulations and the FVRA. Am. Compl. ¶ 82. Mr. Black is the Special Assistant to the Director of the BIA. Id. at 80; Fed. Defs. Answer to Pls.’ Am. Compl. ¶ 80.
On January 19, 2017, then-Secretary of the Interior Sally Jewell issued an order “temporarily redelegating authority” for certain PAS positions effective at noon Eastern Standard Time on January 20, 2017. Pls.’ Mem. for Summary J. Ex. G §§ 1, 5. The order delegated Mr. Black the non-exclusive functions and duties of the AS-IA. Id. §§ 3-4.16 This defeats the Plaintiffs’ challenge to Mr. Black’s February 10, 2017 decision to acquire title in trust for the Tribe, as Mr. Black was performing the duties of the AS-IA under
The Plaintiffs’ argument that the responsibility to take land into trust is exclusive to the AS-IA (and therefore not delegable) is unavailing because there is no positive indication that this was intended to be an exclusive duty. Indeed, the Plaintiffs do not offer any evidence to support this claim. See Pls.’ Mem. for Summary J. 19. To the contrary, there is evidence that taking land into trust is non-exclusive, as a BIA official may “immediately acquire the land in trust” upon the satisfaction of certain temporal or administrative requirements.
With respect to the Plaintiffs’ complaint of Mr. Black’s assumption of jurisdiction and subsequent dismissal of the appeal, this issue is moot because the January 19, 2017 Record of Decision was final when it was issued by Mr. Roberts. See supra Part III.B.
IV. CONCLUSION
For the foregoing reasons, the Plaintiffs’ motion for summary judgment will be denied, and the Defendants’ and Intervenor’s motions for summary judgment will be granted. A separate order will issue.
Dated: February 28, 2018
TREVOR N. MCFADDEN
United States District Judge